Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) [Paperback]

Jurgen Habermas (Author), William Rehg (Author)

Book Description

ISBN-10: 0262581620 | ISBN-13: 978-0262581622 | Publication Date: January 9, 1998

In Between Facts and Norms Jürgen Habermas works out the legal and political implications of his Theory of Communicative Action (1981), bringing to fruition the project announced with his publication of The Structural Transformation of the Public Sphere in 1962. This new work is a major contribution to recent debates on the rule of law and the possibilities of democracy in postindustrial societies, but it is much more.The introduction by William Rehg succinctly captures the special nature of the work, noting that it offers a sweeping, sociologically informed conceptualization of law and basic rights, a normative account of the rule of law and the constitutional state, an attempt to bridge normative and empirical approaches to democracy, and an account of the social context required for democracy. Finally, the work frames and caps these arguments with a bold proposal for a new paradigm of law that goes beyond the dichotomies that have afflicted modern political theory from its inception and that still underlie current controversies between so- called liberals and civic republicans.The book includes a postscript written in 1994, which restates the argument in light of its initial reception, and two appendixes, which cover key developments that preceded the book.Habermas himself was actively involved in the translation, adapting the text as necessary to make it more accessible to English-speaking readers.

Editorial Reviews

Amazon.com Review

Jurgen Habermas, an esteemed political philosopher who lived in Germany during the Nazi reign, has produced a thought-provoking work on what he calls "deliberative politics." To summarize his view, true democracy isn't just the compilation of opinions or a blanket treatment of majority rules, but a social process in which people meet, discuss, modify and, ultimately, agree. He draws connections between how such a process could shape the making of laws and direct the course of nations. His writings here represent a lifetime of political thought on the nature of democracy and law, and deserve an audience and a place in the foundations of democratic theory. --This text refers to an out of print or unavailable edition of this title.

Review

"[A] fascinating synthesis of Continental and Anglo-American legaltheory... full of interesting insights, acute criticisms, andstriking passages." Richard A. Posner , The New Republic

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Product Details

• Paperback: 675 pages
• Publisher: The MIT Press (January 9, 1998)
• Language: English
• ISBN-10: 0262581620
• ISBN-13: 978-0262581622
• Product Dimensions: 8.9 x 6.2 x 1.2 inches
• Shipping Weight: 2 pounds (View shipping rates and policies)
• Average Customer Review: 4.8 out of 5 stars  See all reviews (8 customer reviews)
• Amazon Best Sellers Rank: #58,518 in Books (See Top 100 in Books)
  • #60 in Books > Law > Perspectives on Law > Jurisprudence
  • #64 in Books > Law > Philosophy

Customer Reviews

Most Helpful Customer Reviews

23 of 24 people found the following review helpful:

5.0 out of 5 stars Put Your Hope in the Law, September 25, 2005

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Mark G. Thames (Dallas, TX USA) - See all my reviews
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This review is from: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) (Paperback)

A big book on the big topic of 'how do we all get along' by one of the biggest of living philosophers.

I'll not address the details of the argument or Habermas's place in left-wing politics. Instead, I'll address the intellectual and cultural context.

What Habermas says he is doing is looking for a way to hold societies together that are no longer composed only of one ethnic group; that are no longer made up of adherents of one religion; and are no longer made up of people who accept one myth of their nation or one philosophy of life. We wouldn't need his contribution here, he is saying, if we were not in "postmetaphysical" times--by which he means two things. First, he means that we're in a scientific, secular era when the educated classes, anyway, of major Western countries can no longer be convinced of much of anything by *religious* arguments. Religion doesn't command much belief among social elites, and many others, let alone the kind of universal belief it once inspired. And theology has long since been driven from the position of being 'queen of the sciences' by physics. The second thing he means by "postmetaphysical" (which he uses instead of "postmodern") is that we live in a time when it's hard for any of us to believe that only what we believe is true, and that what we believe is totally true...because our world is so interconnected and we are aware of so many different religions and worldviews people have. That is, religious and worldview pluralism relativizes the authority any one religion or worldview could have now.

Mostly Habermas thinks our "enlightened" state of cosmopolitan equality is really good. But he acknowledges that we've lost something in losing the certainties and meaning and ethics of religions. Among other things we've lost is the social glue that holds citizens of countries together. Since Habermas is a social philosopher of hope, who wants to prevent a Nazi regime and a Holocaust from ever happening again, this is really important to him.

So after saying why socialist welfare states, with their paternalistic governments, and unregulated capitalism, with its discrimination against those who are such losers as to not be affluent, can't be the way forward, he then surveys and rejects other options. Of course, the way forward is his theory, which in his lingo is a constitutional deliberative democracy with a free public sphere and a vibrant lifeworld. Never mind all that, unless you want to get into his theory. The force of it here is that, in a way most people afraid of getting speeding tickets would not expect, he, as a leftie, sees The Law as the best means for keeping all of us together. Even if we don't respect each other so much, basically, if we respect the law we can get along. Even if we don't care about each other so much, if we do as much for each other as the law demands, society will be livable. So the right kind of law makes possible a peaceful society of people who radically disagree on really basic stuff that would often make people violent.

The book is designed to sort out the right kind of law. It is the kind that you can obey not just because you'll get in trouble if you don't, but also because you can agree in principle with how the law was made (even if you don't like the law itself). And the right way to make laws is for people to talk long enough and openly enough with each other in political publics and fora to come up with basic rules of the game we can all live with.

Highly technical, highly abstract, assumes you know basic stuff about Aristotle and Kant without him explaining it, amazingly comprehensive. Underrated in the US because it's not done in the usual Anglo-American way, but not only great for legal theory types, but also for people doing Rawls or Rorty or Derrida or MacIntyre. And for systematic thinker people, think of Between Facts and Norms as Habermas's equivalent of Aristotle's Politics or Hegel's Philosophy of Right. If you like the Olympic pool these guys swim in, this is gold medal contender material.

16 of 16 people found the following review helpful:

4.0 out of 5 stars Democracy: well-known, little understood, June 26, 2005

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Anita Marchezzi (São Paulo, Brazil) - See all my reviews

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This review is from: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) (Paperback)

Some commentators of Habermas' work have argued that he changed his position from "The Theory of Communicative Action" (see review in here at Amazon.com) to "Between Facts and Norms" (BF&N). In the preface of the English edition of BF&N the author himself replies to this issue: Habermas hopes that the book will clear the impression that "the theory of communicative action is blind to institutional reality -or that it could even have anarchist consequences (p. xi)". Thus, the purpose of BF&N is to apply discourse theory to the analysis of democracy in modern societies and not to change the route of his critical theory, as some have argued. Having said this, the reader may be interested to know whether it is possible to understand this book without reading TCA first. I would reply to this question with a cautious "yes". But, of course, something of the understanding will be missed without the theoretical background of Habermas' magnum opus. For someone who would like to read BF&N but is not willing to digest TCA's two volumes, I recommend reading his essay "Three Normative Models of Democracy" (in "The Inclusion of the Other", ed. by Ciaran Cronin and Pablo de Greiff, Cambridge: MIT Press, 1998). This essay presents an outline of the arguments that Habermas will fully develop in BF&N. In this book, he proposes a normative model of democracy as a middle point alternative to the republican and the liberal models. While the republican model relies on Rousseau's idea of collective opinion and will-formation, which demands communication and consensus, the liberal model attributes supremacy to the institutional protection of individual freedom. Habermas affirms that his proposal is normatively "stronger" than the liberal model, but "weaker" than the republican model. In other words, in his deliberative model of democracy, institutions should do more than just protecting the individual from state oppression and act also as carriers of communicative rationality. Institutions are crucial to democracy because they act as legitimacy 'gatekeepers', transforming public opinion into communicative power. "According to discourse theory, the success of deliberative politics depends not on a collectively acting citizenry but on the institutionalization of the corresponding procedures and conditions of communication, as well as on the interplay of institutionalized deliberative processes with informally developed public opinions" (BF&N, p. 298). In a deliberative democracy, opinion formation in the public sphere is to be transferred to the legal and political systems in order to legitimize binding decisions that apply to a political community.
Habermas model is not, therefore, a radical departure from what we know nowadays as a "democratic system". However, most existing democracies lack the conditions for an unconstrained opinion formation in the public sphere due to ideological manipulation,as Habermas points out. Thus, democratic institutions do not guarantee an authentic democracy. As much as Habermas see institutions to be fundamental to democracy, the improvement of the democratic system cannot come from within the institutionalized system. Institutions can stabilize democracy, but are not meant to change society. According to Habermas, only communication action is able to lead us out of our current political predicament.

9 of 9 people found the following review helpful:

5.0 out of 5 stars The Latest Major Work by Habermas, December 12, 2006

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D. Thomas (Northwest Indiana) - See all my reviews
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This review is from: Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Studies in Contemporary German Social Thought) (Paperback)

Habermas's central concern is implied by this book's title. We can't really see a law as a law unless it's backed up with enforcement. That's law as a "fact." But we also want law to reflect values that we can rationalize and validate. That's law as a "norm." This difficult study is worth the effort for anyone who wonders about law's nature and about how ideas like "justice" claim our attention. Habermas wants to define an idea of law that lies "between" law as a fact (what law is and says) and law as a value or norm (what law ought to be, or what we feel law ought to be). The most immediate test case is a circumstance like Nazi Germany, where policies of Jewish extermination were "in fact" legitimated within the state power structure. Doesn't law as a "fact," in that case, seem illegitimate, an indefensible "norm"? If you are interested in an argument that respects the importance of state might but also resists the notion that might makes right, then this book should be on your list.